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Georgia Superior Court Could Not Sanction Probate Court Conduct

February 28, 2018

Authors

Luke Lantta

Georgia Superior Court Could Not Sanction Probate Court Conduct

February 28, 2018

by: Luke Lantta

Probate court practice can be quirky, fraught with procedural peculiarities and appellate traps for those who do not regularly practice there.  Appeals from a Georgia county probate court to that county’s superior court – an appellate process that does not apply to every probate court in Georgia but only to those in certain counties – is one arena in which these quirks frequently arise.  Often, the issues relate to jurisdiction between the two courts.  In McNair v. McNair, the Georgia Court of Appeals addressed a superior court’s authority to impose sanctions for conduct that occurred in probate court proceedings in the same case but prior to the appeal to superior court.

The short answer?  It can’t.

Estate disputes are among the most hotly contested disputes for myriad reasons, not the least of which is they often involve family. 

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When Military Wills Do Not Contemplate Future-Born Children

February 7, 2018

Authors

Luke Lantta

When Military Wills Do Not Contemplate Future-Born Children

February 7, 2018

by: Luke Lantta

Estate planning probably isn’t high on the priority list for many 20-year-olds, even if they are 20-year-olds serving in uniform.  While the Armed Forces may make it easy for those serving our country to get a will, these testators may need to be reminded to update those wills they executed as certain life events occur, like getting married or having children.  So it was in Hobbs v. Winfield, where the Georgia Supreme Court determined that the military will executed by a 20-year-old did not contemplate the birth of future children and, therefore, the birth of those children revoked his will.

At 20-years-old, while serving in the military, the testator executed a will.  The will named the testator’s mother as his sole beneficiary and personal representative, and, if his mother predeceased him, his ‘grandmother’ was the successor beneficiary and personal representative. 

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Giving Away What You Don’t Know You Have

September 14, 2016

Authors

Luke Lantta

Giving Away What You Don’t Know You Have

September 14, 2016

by: Luke Lantta

Under Georgia law, the standard for testamentary capacity requires that a testator remember generally what property is subject to the will’s disposition.  You don’t have to know every dollar, where it is, or all your personal property.  You just have to have some idea of what you have in order to give it away.  While we’d like to quibble over how specific your knowledge must be about the extent of your property to demonstrate testamentary capacity, in Webb v. Reeves, the Georgia Supreme Court just told us that you don’t actually need to know the extent of your property as long as someone apprises you of it.

In this estate dispute’s second appearance here, a caveat was filed to the petition to probate the will of Joseph Thomas Schmidt on, among

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Do You Need Testimony From Subscribing Witnesses To Admit A Will To Probate In Georgia?

July 8, 2015

Authors

Luke Lantta

Do You Need Testimony From Subscribing Witnesses To Admit A Will To Probate In Georgia?

July 8, 2015

by: Luke Lantta

The question of when subscribing witnesses are necessary to admit a will to probate can sometimes be a tricky one.  So tricky that it may even trip up a probate court.  The issues mainly seem to arise when dealing with shifting burdens when a will is challenged.

In a recent Georgia case, Reeves v. Webb (consolidated with Groenenboom v. Webb), there was a petition to probate the decedent’s will in solemn form, and an objection and caveat were filed on the grounds that there was a breach of fiduciary duty to the decedent, fraud, undue influence, and lack of testamentary capacity.  The probate court dismissed the petition by finding that the propounder did not make out a prima

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Georgia Probate Court Lacked Authority To Extend Time To Appeal

November 12, 2013

Authors

Luke Lantta

Georgia Probate Court Lacked Authority To Extend Time To Appeal

November 12, 2013

by: Luke Lantta

Probate court litigation can be very different from other types of litigation, especially when it comes to procedural matters.  Within a single probate case, there can be multiple evidentiary hearings, which can be like mini-trials.  Also, the probate court may enter numerous orders along the way, the rules of appealing which can be different from typical appeals.  For example, in Georgia, “[a]n appeal shall lie to the superior court from any decision made by the probate court, except an order appointing a temporary administrator.”  The time limit for such an appeal is “within 30 days of the date the judgment, order, or decision complained of was entered.”  How hard is that 30 day time limit?  In Duncan v. Moreland, the Georgia Court of Appeals let us know.

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Georgia Supreme Court Addresses Numerous Fiduciary Litigation Topics In Will Contest Opinion

July 23, 2013

Authors

Luke Lantta

Georgia Supreme Court Addresses Numerous Fiduciary Litigation Topics In Will Contest Opinion

July 23, 2013

by: Luke Lantta

Standing to caveat a will?  Check.  Undue influence?  Check.  Testamentary capacity?  Check.  Monomania?  Fraud?  Check and double check.  While the Georgia Supreme Court’s opinion in Odom v. Hughes didn’t break any new ground, it examined such a wide range of will contest topics that it’s definitely worth a read.  Without further ado . . .

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Georgia Supreme Court Construes Scope Of In Terrorem Clause

June 25, 2013

Authors

Luke Lantta

Georgia Supreme Court Construes Scope Of In Terrorem Clause

June 25, 2013

by: Luke Lantta

We know that, because in terrorem clauses result in forfeitures, they are to be narrowly construed.  Just how narrow the construction can mean the difference between a significant inheritance or no inheritance at all.  When a testator indicates that a taker under the will forfeits the “entire interest” that the taker would otherwise have under the will, is there room to more narrowly construe the phrase “entire interest” to mean anything other than the taker’s entire interest?  In other words, can you distinguish between a right to specific bequests and a right to take as part of a residual class?  According to the Georgia Supreme Court, “no.”

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Can A Beneficiary Do An End-Run Around An In Terrorem Clause By Getting Someone Else To File A Caveat?

January 17, 2013

Authors

Luke Lantta

Can A Beneficiary Do An End-Run Around An In Terrorem Clause By Getting Someone Else To File A Caveat?

January 17, 2013

by: Luke Lantta

Well, probably not in Georgia.  If someone is behind the scenes pulling the strings to “initiate” legal proceedings, then that person – who didn’t actually file a caveat him or herself – may have violated the in terrorem clause.

In the first appearance of Norman v. Gober before the Georgia Supreme Court in 2011, the Court decided that eleven-year-old William Howard Norman, the grandson of Margaret Susan Scheer, lacked standing to challenge Scheer’s will because Norman was not an heir-at-law when the caveat was filed.  Norman was a contingent residuary beneficiary under Scheer’s will.  In other words, even if Norman’s caveat was successful, he would still take nothing.  As the Georgia Supreme Court put it, Norman was not “a person who will be injured by the probate of [the] [W]ill, or who will benefit by its not being probated.”  Actually, Norman would have benefited by the probate of

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Three Of Your Most Important Witnesses In A Lack Of Capacity Or Undue Influence Case

December 14, 2012

Authors

Luke Lantta

Three Of Your Most Important Witnesses In A Lack Of Capacity Or Undue Influence Case

December 14, 2012

by: Luke Lantta

The drafting lawyer.

The attesting witnesses.

The notary.

Time and again the case law suggests to us that these are three of your most important witnesses in defending (or pursuing) a lack of testamentary capacity or undue influence case.  Yet, we sometimes don’t put a lot of thought into who will be our attesting witnesses or notary and how they might come across as witnesses at trial.

In Amerson v. Pahl, decided by the Georgia Supreme Court, we get to see again how a case turns on the testimony of these three witnesses.

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Videotaped Execution Of Will Pays Off

October 2, 2012

Authors

Luke Lantta

Videotaped Execution Of Will Pays Off

October 2, 2012

by: Luke Lantta

There is almost never anything good that can be gained by videotaping the execution of a will.  Chances are the testator will be nervous that the whole episode is being taped and that likely will end up showing up on the video.  One of the only reasons that you would tape the execution of a will is a concern about an incapacity challenge, so think about – nerves aside – how the testator is going to look to a jury.

If you think there will be an incapacity challenge, you’re almost always better off instead having witnesses execute contemporaneous affidavits attesting to all those facts that will support a finding of capacity under the laws of your jurisdiction.

Of course, then cases like Patterson-Fowlkes v. Chancey come along where the videotaping of a will execution pays off.

So, what good stuff was on the tape of Ruth Chancey

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